Citation Nr: 0319532
Decision Date: 08/08/03 Archive Date: 08/13/03
DOCKET NO. 02-08 433 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Gentile, Associate Counsel
INTRODUCTION
The veteran's active military service extended from October
1942 to March 1946.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the
Department of Veterans Affairs (hereinafter VA) Regional
Office (RO) in Jackson, Mississippi.
FINDINGS OF FACT
1. VA has obtained all relevant evidence necessary for an
equitable disposition of the veteran's appeal.
2. The medical evidence of record establishes that the
veteran suffers from bilateral hearing loss.
3. The record contains evidence that the veteran suffered
acoustic trauma.
4. The medical evidence of record relates the veteran's
hearing loss to noise exposure.
5. It is at least as likely as not that the veteran's
bilateral hearing loss is related to in-service noise
exposure.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, the
veteran's current bilateral hearing loss was incurred in or
aggravated by active service. 38 U.S.C.A. §§ 101(24), 1110,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.6, 3.303,
3.307, 3.309, 3.385 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA) codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002) and implementing regulations 66
Fed. Reg. 45, 620 (Aug. 29, 2001) (codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2002)). The
VCAA eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supersedes the decision of the United States
Court of Veteran's Appeals in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which held
that VA cannot assist in the development of a claim that is
not well-grounded. The VCAA also imposes a significant duty
to assist an appellant with his claim and to provide him with
notice of the evidence needed to support his claim. The VCAA
is applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); see also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002). The
veteran was notified of the evidence required for a grant of
his claim, and of the provisions of the VCAA, by letter dated
in August 2001. He was also notified of the evidence
necessary for a grant of his claim by rating decision dated
in October 2001 and statement of the case dated in May 2002.
The Board concludes, therefore, that the discussion therein
adequately informed the veteran of the information and
evidence needed to substantiate his claim, thereby meeting
the notification requirements of the VCAA. Consequently,
there is no outstanding duty to inform the veteran that any
additional information or evidence is needed.
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West 2002). The necessary evidence, which includes
clinical records pertinent to the veteran's claim in the form
of: a February 2002 VA examination report; a December 2001 VA
clinic outpatient treatment report; VA clinic outpatient
records from February through May 2001; and a February 2001
letter from a VA audiologist, has been obtained. There are
references, however, to a January 2001 audiometric
examination, the results of which are discussed in the
aforementioned February 2001 letter, that may be relevant in
the adjudication of the veteran's claim. Nevertheless, since
the Board is granting the veteran's claim, no useful purpose
would be served by delaying the adjudication of the veteran's
claim to obtain this report or conduct additional development
pursuant to the VCAA. Similarly, because the veteran's claim
will be granted, no useful purpose would be served by
remanding this case pursuant to the recent holding in
Disabled American Veterans v. Sec'y of Veterans Affairs, 327
F. 3d 1339 (Fed. Cir. 2003). The veteran, therefore, is not
prejudiced by appellate review and the Board can issue a
final decision.
II. Service Connection for Bilateral Hearing Loss
Generally, service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303 (2002). In addition, service connection
may be granted for any disease diagnosed after discharge,
when all the evidence including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2002).
The term "active military, naval, or air service" includes:
(1) active duty; (2) any period of active duty for training,
during which the individual concerned was disabled or died
from a disease or injury incurred or aggravated in line of
duty; and (3) any period of inactive duty training, during
which the individual concerned was disabled or died from an
injury incurred or aggravated in line of duty. 38 U.S.C.A.
§§ 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2002).
Impaired hearing is considered a disability when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or
greater. 38 C.F.R. § 3.385 (2002). Impaired hearing is also
considered a disability when speech recognition scores using
the Maryland CNC Test are less than 94 percent. Id.
Upon the veteran's entrance into the service, in October
1942, he underwent a hearing test that indicated his hearing
was 20/20 in each ear. During his service, the veteran was
assigned to the field artillery. As a result of this
assignment, he claims he was exposed to loud noises,
including: artillery, shelling and bombs. The veteran's
discharge papers, DD 214, confirm that he served in Europe as
a survey and instrument man in Normandy, Northern France,
Rhineland and Central Europe, from April 1944 through
November 1945. The veteran's service records indicate that
as a survey and instrument man, the veteran was responsible
for setting up and operating surveying and fire control
instruments to locate gun positions or observation posts. It
also indicates that he conducted survey operations relative
to construction work. Furthermore, service medical records
relating to the treatment of the veteran's hernia in or
around 1945, list his army occupation as "machine gunner."
The veteran separated from service in March 1946. His
separation examination report, dated in February 1946,
includes the results of a hearing test, whispered voice,
which indicated the veteran's hearing was 15/15 in each ear.
Following his separation from service, the veteran sought
medical treatment at VA facilities on numerous occasions for
disorders unrelated to his hearing loss. Indeed, the claims
file contains several medical examination reports documenting
the treatment of this veteran. None of these reports
indicates or includes the results of any audiometric testing
performed on the veteran.
The first documented postservice hearing test performed on
the veteran was conducted in January 2001 at a VA facility.
As discussed in Section I, however, the examination reports
associated with this testing are not contained in the claims
file. Nevertheless, the results of this examination are
discussed in a February 2001 letter from a VA audiologist.
According to this letter, the veteran's January 2001
audiometric examination revealed that he suffered from a
"moderate to profound sensorineural hearing loss in the
sloping to high frequency range." In her letter, the
audiologist stated that the veteran's hearing loss was
consistent with noise exposure. She noted that the veteran
reported that he was exposed to noise during service. She
further recorded that the veteran worked as an electrician
after he left the service. The audiologist concluded that
the veteran would not have been exposed to noise while
working as an electrician. The letter indicated that the
veteran was fitted with hearing aids following his January
2001 audiometric examination.
The veteran received follow up treatment for his hearing loss
in February, April and December 2001. In progress notes
associated with the veteran's treatment in December 2001, a
VA examiner noted:
Discussion: the question of hearing loss being
service
connected-it would certainly seem that his time in
service as forward artillery observer would be
contributory
to same.
In February 2002, the veteran was accorded another
audiometric evaluation, in connection with his claim for
entitlement to service connection for bilateral hearing loss.
The results of the audiometric examination, which measured
the veteran's hearing in pure tone thresholds, in decibels,
are set forth below:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
50
55
65
80
LEFT
25
40
55
55
75
In addition, a speech audiometric examination revealed the
veteran's speech recognition ability to be 96 percent in the
right ear and 96 percent in the left ear.
The corresponding progress notes contain the results of the
veteran's air and bone conduction testing, which revealed "a
mild to severe sensorineural loss from 500 Hz to 8000 Hz" in
the veteran's right ear and "a mild to profound
sensorineural hearing loss from 1000Hz to 8000 Hz" in the
veteran's left ear. In addition, hearing aids were ordered
for the veteran at the conclusion of this testing. These
results establish a current hearing disability under 38
C.F.R. § 3.385 (2002).
The examination report also contains the veteran's self-
reported medical history. The veteran claimed that he
experienced "military noise exposure [ ] from artillery."
He also reported that he did not wear hearing protection
devices during service. The veteran also claimed exposure to
civilian noise while "working in construction for forty
years and as a shipyard worker for 2 years." He stated that
he sometimes wore hearing protection devices during his
employment. In addition, the examination report indicates
that the veteran claimed he filed and was paid a workers
compensation claim for civilian occupational hearing loss
from shipyard noise exposure. Finally, the veteran reported
some hobby noise exposure while hunting, but stated that he
wore hearing protection devices most of the time. As a
result of his examination, the veteran was diagnosed with
"bilateral sensorineural hearing loss with either ear
periodic subjective tinnitus consistent of unknown
audiological etiology." In addition, VA hearing aid
services were recommended, subject to the veteran's
qualification.
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is
in relative balance with the weight of the "negative"
evidence against the claim. The appellant prevails in either
event. If the weight of the evidence is against the
appellant's claim, however, the claim must be denied.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Applying the pertinent legal criteria to the facts summarized
above, the Board finds that the most recent audiometric
findings, obtained from a February 2002 VA audiometric
examination, establish that the veteran has a bilateral
hearing loss disability. 38 C.F.R. § 3.385 (2002). In
addition, the veteran's service records demonstrate that he
served as a survey and instrument man as well as a machine
gunner in the army. In addition, according to his self-
reported medical history, the veteran was exposed to loud
noise during service. He also claimed to have suffered and
received workers compensation for occupational noise exposure
while working in a shipyard.
The evidence set forth above, while not conclusive, does not
dissociate the veteran's hearing loss from his service.
Moreover, the evidence of record shows that it is as likely
than not that the acoustic trauma that caused, or contributed
to, the veteran's hearing loss was associated with service.
The Board notes that the reference to the veteran's alleged
employment in a shipyard and his workers compensation claim
for "civilian occupational hearing loss from shipyard noise
exposure" is contained only in the February 2002 audiometric
examination report. Indeed, the claims file does not contain
any other evidence of the veteran's occupation as a shipyard
worker. Notwithstanding this reference, however, the
audiologist diagnosed the veteran with "bilateral
sensorineural hearing loss with either ear periodic
subjective tinnitus consistent of unknown audiological
etiology." Furthermore, the progress notes dated in
December 2001 indicate that the veteran's time in service as
a forward artillery observer would be contributory to his
hearing loss.
Affording the veteran the benefit of reasonable doubt, the
Board concludes that the veterans hearing loss is causally
related to acoustic trauma sustained during military service,
and entitlement to service connection for bilateral hearing
loss is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38
C.F.R. § 3.102 (2002); Gilbert, 1 Vet. App. at 49.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for bilateral hearing loss is granted.
____________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.